780 F.2d 1150 (5th Cir. 1986), 84-3619, Nicholas v. Homelite Corp., A Div. of Textron, Inc.

Docket Nº:84-3619.
Citation:780 F.2d 1150
Party Name:Corrine NICHOLAS, Plaintiff-Appellee, v. HOMELITE CORPORATION, A DIVISION OF TEXTRON, INC., and Aetna Casualty & Surety Co., Defendants-Appellants.
Case Date:January 15, 1986
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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780 F.2d 1150 (5th Cir. 1986)

Corrine NICHOLAS, Plaintiff-Appellee,



Casualty & Surety Co., Defendants-Appellants.

No. 84-3619.

United States Court of Appeals, Fifth Circuit

January 15, 1986

Rehearing and Rehearing En Banc Denied Feb. 13, 1986.

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Hailey, McNamara, Hall, Larmann & Papale, Richard T. Simmons, Jr., Metairid, La., for defendants-appellants.

Baham, Anderson & Bennett, Gregory F. Gambel, J. Thomas Anderson, New Orleans, La., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before CLARK, Chief Judge, THORNBERRY and JONES, Circuit Judges.

CLARK, Chief Judge:

Homelite appeals a $300,000 judgment entered against it in a wrongful death action based on strict products liability and negligence. It argues that Louisiana law required application of comparative fault principles, that the trial was unfairly prejudicial, that the jury instructions and interrogatories constituted plain error, that damages were excessive, and that the district court erred on a number of evidentiary rulings. We find merit only in the comparative fault contention. We affirm the judgment against Homelite, but reduce it to $150,000 in proportion to the deceased's 50% negligence.


In January 1977, Rodney Nicholas purchased a bow-blade chain saw from a local retailer. Homelite manufactured the engine housing and authorized the use of a bow blade manufactured by Lynwood. Mr. Nicholas was killed almost instantly on March 20, 1982 when, as he was cutting cypress, the saw kicked back into his neck. His widow brought suit for wrongful death against Homelite in state district court, alleging that the chain saw was defective and that Homelite was negligent. Homelite

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removed to federal court on the basis of diversity of citizenship.

At trial, plaintiff contended that the saw was defective in that it did not have a chain brake, an adequate chain guard, or a safety chain, and in that Homelite had failed to adequately warn Mr. Nicholas of the bow saw's kickback. In addition to arguing that the saw was not defective, Homelite contended that Mr. Nicholas assumed the risk of his accident and that he was contributorily negligent. In answer to special interrogatories, the jury found that the saw was defective, that the defect was a proximate cause of the injury, and that Mr. Nicholas had not assumed the risk. Under the negligence theory, the jury found that Homelite was negligent and that its negligence was a proximate cause of Mr. Nicholas' death. The jury also found that Mr. Nicholas was 50% negligent. The district court entered a $300,000 judgment in favor of Mrs. Nicholas on the jury's verdict.

Homelite appeals, arguing that: (1) Louisiana law required the trial judge to apply comparative fault to reduce by one-half Mrs. Nicholas' damage award; (2) the trial was unfairly prejudicial; (3) the sequence and content of the jury interrogatories constituted plain error; (4) the damage award was excessive; and (5) the district court erred on a number of evidentiary rulings.


  1. Comparative Fault 1

    Our responsibility in reviewing this diversity action is to apply the law of Louisiana. Homelite first argues that Louisiana law requires the application of comparative fault to reduce Mrs. Nicholas' damage award by her husband's 50% negligence. Statutory Louisiana law provides for the reduction of damages in proportion to a claimant's fault when "contributory negligence is applicable to [the] claim." La.Civ.Code Ann. art. 2323 (West Supp.1985). In Bell v. Jet Wheel Blast, the Louisiana Supreme Court answered a certified question from this Court with guidance on when the negligence of a plaintiff may reduce his award in a products liability action. 462 So.2d 166 (La.1985).

    In Bell, an employee-plaintiff suffered a hand injury while operating machinery manufactured by the defendant. Id. at 167. The Louisiana Supreme Court noted that under the Civil Code the defense of contributory negligence no longer imposed a complete bar to recovery and that "comparative fault may be applied in certain categories of cases to reduce the plaintiff's recovery." Id. at 169-71. The court then explained that comparative fault should be applied where it would further the goals of products liability doctrine.

    Where the threat of a reduction in recovery will provide consumers with an incentive to use a product carefully, without exacting an inordinate sacrifice of other interests, comparative principles should be applied for the sake of accident prevention. The recovery of a plaintiff who has been injured by a defective product should not be reduced, however, in those types of cases in which it does not serve realistically to promote careful product use or where it drastically reduces the manufacturer's incentive to make a safer product.

    Id. at 171-72. The court determined that Bell's negligence was momentary inattentiveness "while performing a repetitive operation with a defective industrial machine as required by his employer." Id. at 172. The court found that reducing his award would not promote the prevention of such behavior in the future and would reduce "economic incentive for product quality control." Id.

    To decide whether Bell indicates that comparative fault should be applied to reduce Mrs. Nicholas' award, therefore, we must determine whether the application of comparative fault on the facts of this case will provide an incentive to careful use by consumers. If it will not, comparative fault does not apply. If the application of comparative fault will provide consumers

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    with an incentive for careful use, then we must also determine whether its application will drastically reduce the manufacturer's incentive to make a safer product. If it will, Louisiana law prohibits the application of comparative fault. See id. at 171-72.

    Mr. Nicholas purchased and used the Homelite saw for personal rather than commercial or business use. No employer required his use of the saw. 2 Furthermore, he had experienced a previous kickback from the saw he was using when he was killed. Under these circumstances the threat of a reduction in recovery will provide future consumers with the very incentive for more careful use which the doctrine of comparative fault was...

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